Let’s Talk About Sex[ual Harassment]

Sexual harassment is not a new phenomenon.[1] Sexual harassment affects not only young woman in subservient positions,[2] but also in professional careers.[3] Sexual harassment is not confined to Hollywood, but occurs in media outlets, from journalism to television, throughout the country.[4] Sexual harassment is not partisan.[5] Finally, sexual harassment is experienced by both women and men.[6] Sexual harassment thrives on the hypocrisy of our nation’s leaders in government,[7] corporations,[8] and religious institutions.[9]

The reports of sexual harassment discussed broadly in the news unambiguously demonstrate the inadequacy of legal protections for people experiencing workplace sexual harassment. This Post begins by setting up the current legal framework for an actionable workplace sexual harassment claim. Then, Part II will discuss why these frameworks are inadequate in practice for preventing workplace sexual harassment. Finally, Part III suggests that the legal framework for sexual harassment claims should encompass a wholistic “gendered claim”—one that prevents courts from disaggregating and that outlines effective reporting procedures. Courts should not penalize plaintiffs who quietly rebuked workplace sexual harassment before later deciding to come forward. Ultimately, this Post offers a framework that encompasses the power dynamics of workplace sexual harassment and works cohesively with the tactics people employ to avoid immediate (and often expensive) legal action.

I. FRAMEWORK FOR AN ACTIONABLE WORKPLACE SEXUAL HARASSMENT CLAIM

Title VII of the Civil Rights Act of 1964 (hereinafter Title VII), Section 703(a)(1) states, “[i]t shall be an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s . . . sex.”[10] Unquestionably, courts have held that sexual harassment is discrimination “because of such individual’s . . . sex.”[11]

“[u]nwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature . . . when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment (quid pro quo), (2) submission to or rejection . . . by an individual is used as the basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.”[12] (emphasis added).

The Supreme Court affirmed the validity of the EEOC’s guidelines by upholding actionable sexual harassment to include quid pro quo and hostile work environment claims.[13] Part A describes the prima facie case a Plaintiff must prove to prevail on a quid pro quo sexual harassment claim. Part B describes what a Plaintiff must prove for a successful hostile work environment claim.

A. Actionable Quid Pro Quo Claims

Quid pro quo sexual harassment occurs when an employer solicits sexual favors from an employee in exchange for a job related benefit.[14] Quid pro quo often manifests when an employee refuses to comply with sexual demands and is penalized within the scope of his or her employment.[15] A Plaintiff must show that (1) the employee belongs to a protected group, (2) the employee was subject to unwelcome sexual harassment, (3) the harassment was on the basis of sex, and (4) the employee’s reaction to the harassment affected tangible aspects of the employee’s compensation, or terms, conditions, or privileges of employment.[16]

Often, the gravamen of a quid pro quo claim is a demonstration that the alleged sexual harassment had a tangible effect upon the employee’s job benefits.[17] However, it is not impossible to establish an actionable claim when an employee acquiesces to the supervisors’ ultimatum out of fear of the adverse employment action.[18] This situation is typically examined under the “unwelcomeness” prong and is a fact-intensive inquiry that often leads to problems of proof.[19]

B. Hostile Work Environment Claims

Actionable hostile work environment claims are broader than quid pro quo claims. In 1986, the Supreme Court held that a Title VII claim can be established by proving that discrimination based on sex creates a hostile work environment.[20] In Meritor Savings Bank v. Vinson, the Court held that actionable sexual harassment must be sufficiently severe or pervasive “to alter the conditions of [the victim’s] employment and create an abusive work environment.”[21] Further, the gravamen of a hostile work environment claim is whether the alleged sexual advances were “unwelcome.”[22] In sum, a person alleging hostile work environment must show that the harassment occurred (1) because of sex, (2) that the harassment was severe or pervasive, and (3) that the harassment was unwelcome.[23]

“[B]ecause of . . . sex” protects both men and woman.[24] This language does not preclude same-sax sexual harassment, but inquires “whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.”[25] A Plaintiff’s evidence might include showing that the harasser used sex-specific and derogatory terms, or by comparing how the harasser treated members of both sexes in a mixed-sex workplace.[26]

To determine whether conduct meets the “severe or pervasive” prong, the Supreme Court held that “[s]o long as [t]he environment would reasonably be perceived, and is perceived, as hostile or abusive,” then the prong is met.[27] This provides both an objective and subjective test, allowing the court to consider the totality of the circumstances. Circumstances may include: frequency of the discriminatory conduct, severity, whether it is physically threatening or humiliating, merely an offensive utterance, and whether it unreasonably interferes with an employee’s work performance.[28]

Finally, many circuits differ with how they analyze the “unwelcomeness” requirement. The court in Harris did not specifically analyze whether the conduct was unwelcome, but focused on whether the victim subjectively perceived the conduct as harassment.[29] The court in Meritor emphasized that voluntariness is not synonymous with welcomeness, however it may be relevant how the victim acted and dressed.[30] EEOC guidelines state that the trier of fact will view the alleged acts “in light of ‘the record as a whole’ and ‘the totality of circumstances . . . and the context in which the alleged incidents occurred.’”[31]

II. THE SEXUAL HARASSMENT LEGAL FRAMEWORK IS INADEQUATE AND UNDER-INCLUSIVE BECAUSE IT FAILS TO ADDRESS SOCIETAL NORMS

For sexual harassment claims to provide a legitimate source of legal recourse for individuals experiencing harassment, it is imperative that the law remains flexible to embrace the norms of different workplace cultures. One of the biggest hurdles individuals face is deciding when the alleged misconduct amounts to sexual harassment.[32] It is widely recognized that sexual advances or verbal and physical conduct of a sexual nature likely produce a prima facie showing of sexual harassment.[33] For example, in the Hollywood stories involving Harvey Weinstein, James Toback, and Kevin Spacey, the actions of the alleged perpetrators were unambiguously sexual harassment.[34] However, the law offers fewer protections for claims of sexual harassment not involving sexual conduct. [35] Courts fail to recognize that any form of gendered harassment is harassment on the basis of sex—and it is a pervasive problem in the everyday work world.[36]

Often, the harassment individuals experience at work includes both sexual and nonsexual conduct. Understanding when to name this mixture of conduct as sexual harassment is vital to a successful claim.[37] In reality, many individuals lose the validity of a sexual harassment claim when they deal with the alleged misconduct quietly.[38] The majority of people who experience sexual harassment employ passive strategies such as avoiding or dismissing the conduct, transferring positions, even quitting their job, or simply ignoring the conduct in hopes that it goes away.[39] In some cases individuals remain silent as a way to keep the power by not letting the harasser know the conduct was bothersome.[40]

Unfortunately, the law often fails to protect individuals in these situations and extralegal tactics (e.g., remaining silent or not taking comments personally) may actually hurt an eventual sexual harassment claim.[41] Courts are less likely to view the alleged misconduct as harassment because a person’s silence or use of deflection tactics suggests to the court that the conduct was not subjectively harassment.[42] As displayed by the Anita Hill hearings, “one’s emotional silence and inaction can be taken as evidence against a claim of unwelcomeness and harm.”[43]

This paradox requires a complainant to display their disempowerment, while requiring the complainant to empower themselves by calling out their harasser.[44] Unfortunately, when the law is removed from societal norms, it is utterly useless. Under-inclusive sexual harassment protections are an empty tool people in power use to perpetuate the status quo, particularly when it hurts those who are disadvantaged. This framework does not combat the sexual harassment individuals face in many workplaces: what should be actionable harms will continue to go unnamed, unblamed, and unclaimed until sexual harassment framework adjusts to reality.

III. IT’S TIME TO CHANGE THE WAY THE LAW ANALYZES SEXUAL HARASSMENT

Society is in a unique place to demand equitable changes to the sexual harassment legal framework. Women are reclaiming what it means to be a victim.[45] Women are no longer waiting for someone (e.g., Hillary Clinton) to save them; they are picking up their own swords and becoming heroes.[46] The recent use of social media to call out perpetrators of sexual harassment is accomplishing what courts have refused to do: naming the misconduct as sexual harassment, and placing blame on perpetrators of gender-based harassment.[47]

When courts consider sexual harassment claims, the main focus is often on the sexual nature of the [mis]conduct.[48] Sexual misconduct is often only part of the alleged harassment.[49] When courts disaggregate sexual harassment claims into sexual conduct and nonsexual conduct, they lose sight of the wholistic problem victims face. This ultimately downplays the strength of the discrimination claim, and nothing but sexually or physically egregious conduct survives. A truly effective analysis of a sexual harassment claims would view the alleged misconduct wholistically. This includes conduct that singles out the victim based on his or her gender.

Furthermore, the “unwelcomeness” prong of hostile work environment must be altered to credit victims who use extralegal tactics to ward off sexual harassment. As mentioned above, the paradox complainants face because they first tried to ignore the misconduct should not hurt their legal claim. The law must recognize that individuals may choose not to speak out against their harasser if they believe it would subject them to repeated or more egregious conduct. Arguably, the “unwelcomeness” prong could be eliminated from the sexual harassment inquiry all together. Harassment that is severe or pervasive should automatically be considered unwelcome. This eliminates the negative effect of using extralegal tactics to ward off repeated bouts of harassment.

Sexual harassment law needs to do its job. The framework as of now falls short of addressing societal norms. As examples of sexual harassment conduct become more prevalent in the media, the law must conform to protect individuals experiencing this misconduct.

Joanna L. Grossman, Moving Forward, Looking Back: A Retrospective On Sexual Harassment Law, 95 B.U. L. Rev. 1029, 1030 (2015) (“The history of sexual harassment law . . . can be divided . . . into three eras. The 1970s was home to the emergence of consciousness about the frequency and harm of sexually harassing behaviors in the workplace – and a name to describe them.”). ↑

Id. at § 29 (“[T]he employee must actually suffer a negative employment consequence as a result of the employee’s rejection of the sexual advance . . . mere threatening of adverse employment action is in itself insufficient to sustain a cause of action for quid pro quo sexual harassment if the supervisor does not actually administer the threatened punishment.”). ↑

Id. at 2404–05 (quoting 29 C.F.R. § 1604.11(a) (1985) (providing also that such sexual misconduct constitutes prohibited sexual harassment whether or not it is directly linked to the grant or denial of an economic quid pro quo, where “such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive work environment.”)). ↑

See Grossman, supra note 1, at 1031 (explaining the importance of connecting the injury to a remedy by “collectively identify[ing] a behavior and deem[ing] it wrongful . . . then provide the legal and extralegal mechanisms through which the blameworthy can be forced to remedy the harm to the victims.”). ↑

See Harris, 510 U.S. at 23 (“[W]hether an environment is hostile or abusive can be determined only by looking at all of the circumstances . . . include[ing] the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating . . . .”); 29 C.F.R, § 1604.11(a)(1)–(3) (2017). ↑

Vicki Shultz, Reconceptualizing Sexual Harassment, Yale L.J. 1685, 1686 (1998) (“[U]sing the [sexual desire-dominance] paradigm to conceptualize hostile work environment harassment has served to exclude from legal understanding many of the most common and debilitating forms of harassment faced by women (and many men) at work each day.”). ↑

Grossman, supra note 1, at 1031 (reiterating from landmark article by Felstiner, Abel, and Sarat, the three stages of connecting an injury to a remedy: naming the particular injurious experience, blaming who was responsible for committing the injury, and claiming by voicing the grievance to the proper entity). ↑

Beth A. Quinn, The Paradox of Complaining: Law, Humor, and Harassment in the Everyday Work World, 25 Law & Soc. Inquiry 1151, 1155 (2000) (“Sexual harassment lives as a legal harm only through its voicing; in its absence, the actual psychological and economic harm to the victim is irrelevant to the law.”). ↑

Id. at 1163 (“By refusing to react, one may be able to avoid being the target of repeated and often escalating jokes.”) (emphasis added). ↑

Id. at 1172 (“[I]f a woman manages to not take it personal . . . then there is nothing that anyone—the perpetrators, the victim, or the law—can do about it. Sexual harassment is problematic but ‘normal.’”). ↑

Id. at 1174 (“A woman’s history of not taking it personal . . . betray her when standing before the law. . . . The more a woman succeeds in this informal arena, however, the more likely she will fail in the eyes of the law.”). ↑

Id. at 1173 (“To establish a believable claim, a woman must make a showing of her disempowerment. Simultaneously, the law requires great acts of power from this woman by requiring her to speak out against the very person harassing her. Yet these acts of speech, in the context of power humor, are productive of disempowerment.”). ↑

Id. (citing that since the presidential election in 2016, traditionally disadvantaged women are running for and being elected into office); Kathryn VanArendonk, Why the Witch Is the Pop-Culture Heroine We Need Right Now, Vulture (Oct. 25, 2017, 12:09 PM), http://www.vulture.com/2017/10/why-the-witch-is-the-pop-culture-heroine-we-need-right-now.html(“If you are a man with a certain political outlook, these women are witches who want to abort their babies and subvert the natural reproductive process, who crave power and exert unnatural wiles. At the same time, many of those same women are marching in the streets and insisting that men can no longer harass and assault them with impunity. The witches are striking back.”); Lindy West, Brave Enough to be Angry, N. Y. Times (Nov. 8, 2017), https://www.nytimes.com/2017/11/08/opinion/anger-women-weinstein-assault.html (“Not only are women expected to weather sexual violence, intimate partner violence, workplace discrimination, institutional subordination . . . we are not even allowed to be angry about it . . . [w]e are expected to keep quiet about the men who prey upon us, as though their predation was out choice, not theirs.”). ↑

Title VII does not necessarily protect individuals from “gender-based” harassment. Section III of this Post suggests that the Court should broaden its understanding of sexual harassment to include all forms of gender based harassment, regardless of whether the actions are sexual in nature. ↑

Shultz, supra note 29 at 1713–14 (“Courts decide, explicitly or implicitly, that only overtly sexual conduct counts towards establishing hostile work environment harassment and that nonsexual conduct must be considered-if at all-as a separate form of disparate treatment.”). ↑

See, e.g., id. at 1711. (“The magistrate made the classic analytical move . . . disaggregation. He began by parceling out the sexual and nonsexual conduct into separate claims. The nonsexual conduct, such as denying Harris a car, car allowance, office, and annual review, was not considered part of the harassment claim.”). ↑